GREEN, V. C.

On bill, answer, and proofs in open court.

E. K. Seguine, for petitioner.

A. Q. Garretson, for defendant.

GREEN, V. C. This is an action for divorce on the ground of desertion. The parties were married at Mt. Hope, Westchester county, N. Y., June 14, 1883. The complainant, at the time of her marriage, resided there with her father, and has continued to live there up to the present time. The bill alleges that the defendant deserted his wife in August, 1885. It was filed on the 16th of May, 1890. It appeared in the evidence that the husband, at the time of marriage, was employed by a firm in New York city, but soon after his marriage the head of the firm died, and he was thrown out of employment; that he sought to get into business unsuccessfully until August, 1885, on the 25th day of which month he went to Kansas City to find employment. This action on his part was with the entire consent and approbation of his wife, and with the understanding that if he was successful in his efforts she would follow him, with their little child, and take up their residence wherever he might become established. They corresponded together, and he, from time to time, up to June, 1886, remitted money to her. He wrote her in January, 1886, that he had a promise of a fair salary, on which he thought they could support themselves with economy, but advised her, in consequence of the inclement state of the weather, not to venture there with her infant until later in the season. His last remittance to her was on June 25, 1886, and after that time the correspondence seems to have been less frequent, if it was not entirely discontinued. He lost his situation in Kansas City, and was reduced to penury. Friends assisted him with means to return to the east, and he came back in February, 1887. He returned by a route which had its termination at New York city,—by the Hudson River Railroad. He arrived in New York in the middle of the night, and went immediately to his relatives in Hudson county, N. J. He did not communicate the fact of his return to his wife; neither did he go there or write to her. He accounted for this, in the first place, by lack of means, which prevented his going there immediately after his arrival, and because he had heard that his wife did not desire to see him. His wife knew, however, of his return, but neither sent to him nor communicated with him by letter or otherwise. She took measures to institute an action in the courts of New York against him for divorce on the ground of adultery, alleged to have been committed in Kansas City early in the year 1887. Rumors of such action on her part reached the defendant, and he requested a connection of his family, Rev. Mr. Sherwood, to go and see his wife. Mr. Sherwood called upon her on April 4, 1887, and told her that he camefrom her husband, saying that her husband was willing to support her to the best of his ability if she would return to him. Her reply to Mr. Sherwood was that she had no confidence in his support, and was not willing and would not under any circumstances return to him; and, further, that the child should not bear its father's name. Mr. Sherwood said, further, that he came from her husband at his request, and that he had told him to tell her that he would support her. Mrs. Chipchase and her father say that this interview impressed them only with the idea that the proposition was made for the purpose of extracting some answer, and seem to have questioned its good faith. She says that she employed Mr. John H. Hull, of the New York bar, to prosecute her action against her husband in that state as early as May, 1887, and did not prosecute the same actively for financial reasons. Information reached the defendant that proceedings were to be taken in New Jersey looking to his arrest, and thereupon Mr. Rudolph Rabe was employed in his behalf. Mr. Rabe testified that he waited on Mr. Hull, the counsel for the complainant, in New York, to prevent any such action. Complainant then called on Mr. Rabe, who declined to have any communication with her except in presence of her counsel; but, on her explaining that she had visited him at Mr. Hull's request, he asked her what she wanted. She then said to him that she wanted to get rid of her husband, and he told her that her hushand was willing to support her, and asked her if she was willing to go to New Jersey to live with him; that her husband would do the best he could by her; and she then said she would not do it under any circumstances. Mr. Rabe then cautioned her again against talking, and told her not to have any further conversation with him. Subsequent to that time the action for divorce was commenced by the serviceon the defendant of summons and complaint. The cause of action was an alleged adultery on the part of the defendant. A stipulation was agreed upon after the suit was brought by which the defendant paid a counsel fee, and provided for the payment to his wife for her child of $14 a month. It appears in evidence that this amount has been paid by the defendant from that time to the time of the trial. Mr. Rabe says that this arrangement was made because of the conviction in his mind that the court, on application, would make some such provision, and was to avoid the necessity of a motion for that purpose. He says that in the conversation which she had with him she again said she had no confidence in her husband, or something to that effect; that he had committed adultery in Kansas City, and she wanted to get rid of him; and he then told her she had best bring her suit. The action is still pending and undetermined, the last proceeding taken being for the issuance of a commission to Kansas City to take testimony, and that this procedure was September 7, 1889, nothing being done since that time except the substitution of attorneys.

It is clear that the departure of the defendant on the 25th of August, 1885, to Kansas City, with the consent and approval of his wife, and his continuance there, did not constitute a desertion, as alleged in the bill of complaint. The bill alleges willful, continued, and obstinate desertion for a period of three years prior to April 22, 1890, the time when the bill of complaint was verified. This three years commenced in April, 1887. The statute, however, now requires but two years' obstinate desertion to warrant a decree for divorce on that ground, which would bring it to April, 1888. The separation between the parties, predicated on the theory of desertion, must have relation to the conduct of the defendant in not visiting or communicating with his wife on his return from Kansas City in February, 1887. If his excuse for refusing to visit or communicate with his wife after such return is not sufficient, it might furnish proof of a willful desertion on his part. I do not think his excuse a valid one for the period between his return and his sending Mr. Shsrwood, in April, 1887, to his wife with an invitation to her to return; but I see nothing to attack the good faith of his offer at that time, unless it is that it was made when there were rumors of her intention to proceed against him for a divorce. Immediately after his return he was in search of employment, and possibly was not in a position to offer her a home. But when he did send, he was with his friends, and there is nothing to show that he would not have been able to provide her with the same comforts that he himself enjoyed. But it is not necessary, in my view of the case, to pass upon the question as to whether the offer of the defendant to his wife was made in good faith, and was one which she had no legal ground to refuse, so as to put an end to what otherwise might have been considered in law as a desertion on his part. Desertion, in this state, to form a ground for divorce, must not only be willful and continued, but must be obstinate; and this involves a consideration of the attitude assumed and maintained by the opposite party, for desertion cannot be considered as obstinate on the part of one when the separation is acquiesced in and entirely satisfactory to the other, who neither entertains nor manifests any desire that the separation or the causes which brought it about should cease. Was the desertion of the defendant obstinate from either April, 1888, or April, 1887? The testimony both of Mr. Sherwood and of Mr. Rabe, as well as the impression left by the examination of the complainant herself, leaves it entirely clear that from April, 1887, the time when the consulted Mr. Hull, up to the day when she was examined as a witness in her own behalf, she had no desire or wish that the separation should be brought to an end. In fact, it establishes that she had lost whatever of affection she may have once entertained for her husband, and, in her own expressive words, "that she desired to get rid of him." This forms a motive for her refusal to communicate with him; and, while the courts pay due regardto womanly delicacy in hesitating to make the first advance, they do not countenance an entire absence of affection and a desire on the part of the wife to be forever relieved from the company or affection of her husband. But this was not an inactive desire. It manifested itself in the most offensive form. At the very commencement of the period through which the husband's desertion must be proved to have been continued and obstinate, she was making arrangements with her counsel in New York to commence an action against her husband for a divorce on the ground of adultery. She expressed such intention to others as well as to Mr. Rabe. The immediate prosecution of the suit was delayed only in consequence of financial reasons, but did commence in June, 1887, and that suit was pending and undetermined at the time she commenced this action in this state in May, 1890, and at the time of the trial. Argument is not necessary to enforce the position that, a party who is prosecuting a suit for divorce on the ground of adultery cannot maintain that the separation of the opposite party during the pendency of such suit is obstinate, as understood with reference to desertion as the ground of a divorce. In my opinion this suit cannot be maintained under the circumstances presented, and the bill must be dismissed.